Harvard lawprof Nico Bowie submitted written testimony to the Presidential Commission on SCOTUS, which was theoretically created to address issues arising from the three justices appointed by the last president that gave rise to fear and outrage that the Supreme Court now had a conservative wing of political hacks. Or to pacify the outraged by creating a committee that would spend a lot of time murdering words and ultimately do nothing, if you’re just a wee bit cynical.
Bowie argues that the Supreme Court is anti-democratic, which, of course, is correct. But his argument is that it should be democratic.
I will focus on two arguments for reforming the Supreme Court, both of which object to the antidemocratic nature of judicial review. First, as a matter of historical practice, the Court has wielded an antidemocratic influence on American law, one that has undermined federal attempts to eliminate hierarchies of race, wealth, and status. Second, as a matter of political theory, the Court’s exercise of judicial review undermines the value that distinguishes democracy as an ideal form of government: its pursuit of political equality. Both arguments compete with counterarguments that judicial review is necessary to preserve the political
equality of so-called discrete and insular minorities. But even accepting that the political equality of all Americans should be protected, the justification for judicial review is not persuasive as a matter of practice or theory.
Not being a Harvard Law School prawf, I disagreed with an obvious retort.
The Supreme Court is meant to be an undemocratic institution, which is the only way in which it could protect the minority from the tyranny of the majority.
But it’s one thing to say that Supreme Court nominating opportunities that arise in the normal course of a justice’s life cycle can’t be helped, and another given what Mitch McConnell did to Merrick Garland and says he’ll do again to Biden’s nominee, should Biden get one and McConnell be able to pull it off.
While Bowie’s contention is that the Supreme Court should use its authority to promote what he believes to be societal goods, like “eliminat[ing] hierarchies of race, wealth, and status,” as if it were another legislative branch, but with fewer votes needed to “reimagine” the law, there is a more serious question about whether the Supreme Court should reflect a more balanced perspective of the nation over which it rules.
Has the Supreme Court become too conservative as a product of McConnell’s shenanigans and the last president’s fortuitous opportunity to nominate three justices? Even if the justices do their best to be principled in their holdings, there will always remain latitude for jurisprudential bias to influence their approach to cases, issues, the law and the Constitution. When that perspective is tilted too far one way or another, is the Supreme Court the apolitical institution it aspires to be?
For the same reasons Bowie’s argument for democratizing the Court undermines whatever legitimacy the public perceives in its authority, is it wrong to want a Court that reflects the broader views of the nation rather than chalk up a win for the conservatives? Just as no fair person wants the Demand Justice vision of justices who are so irreparably prejudiced that they can be counted on to rule for one side, is not similarly unseemly to have a court dominated by justices from the other side?
*Tuesday Talk rules apply.